A Tory-dominated House of Commons Committee trashes its own government
We have now looked through today's report by The Women and Equalities Committee
Into the reform of the Gender Recognition Act. It’s a very useful review, with some important suggestions that we certainly support, though it falls short in other areas.
The first questions are of course Will it make any difference? To anything? It's hard to say. The Report is unflinching in its criticism of government, especially the Government Equalities Office and its senior ministers, who effectively refused to cooperate with the Committee – a characteristic of a regime that has no interest in scrutiny by Parliament. It also attacks the Equalities and Human Rights Commission for failing in its duty to lead and to clarify and for the attitude it took to the Committee. It lays bare the reality that there is little interest in government now to support trans rights. At best the ministerial position seems to be to try and avoid the issue, whilst allowing people with opposing views to rip each other to pieces in the public domain and the toxically anti-transgender British press to tear the trans community down, so it can then pick over the wreckage for political gain.
But there are reasons to care. It's an important reference document, developed after extensive evidence taking. In addition, the Cass Review into the future of the Tavistock Gender Identity Clinic continues. The report's strong support for action to deal with the staggering backlog of referrals, across the whole country, will make it harder for opponents to get the Tavistock GIC crippled or even closed. Likewise, GRA reform is very much on the agenda still in Scotland (where these matters are devolved) and whilst this report covers England and Wales only, its conclusions will be read in Holyrood too.
Amongst the main conclusions, the Committee applauds the government's decision to digitize the GRC process (something that, frankly, it should have done years ago) and the cut in the application fee to £5, though it calls these tokenistic moves, which they are. It calls out the government on its claim to be creating 3 new clinics in response to the GRA consultation, when these clinics are small pilots, won’t make any real difference to staggering wait times and were all announced by the NHS before the process started.
It attacks the government for burying the LGBT Action Plan - now effectively dead. We’d personally like to pay tribute to trans members of the government’s LGBT Advisory Group, including James Morton and Jane Ozanne, who clung on as long as possible to keep it on life support, before acknowledging that the government had pulled the plug out.
On GRA reform the Committee calls for the removal of the need for a diagnosis of Gender Dysphoria as a precursor to applying for a Gender Recognition Certificate – a key part of the pathologisation of trans people. Good. Likewise, it calls for an end to the grim ‘Real-Life Test’ of two years before a candidate can qualify to apply for a GRC. We are glad to see the rejection of extreme views put to the committee by, for example, FiLiA, on this.
The Committee goes on to call for the government to bring forward new proposals for Self-ID , which can include strong legal safeguards using a Statutory Declaration. This works well in Ireland. Some submissions were made to the Committee – reflected in the Report – that suggest the current wording of the Statutory Declaration (the ‘sign in blood’ clause that implies that you have to live out your days in your acquired gender) should be changed to remove this seemingly onerous aspect. In our view, this is actually a legal red herring. The document says that you must intend to live in your acquired gender for the rest of your life. If you do change your mind, you are not breaking the law if you detransition, though it may be useful to be clearer to applicants on this, using accompanying notes as they go through the process. You do of course still need to mean it when you sign; a court's going to want evidence of that in any case of malfeasance.
We completely support the recommendation to remove the spousal veto. It’s long been a legal outrage. It was only added after the Same-Sex Marriage Act passed in 2013, prior to which legal transition had to be preceded by divorce. It has no place in a system in which people have the right to live legally in their authentic gender and since its removal in Scotland, seven years ago, the world has not caved in, north of the border.
We believe the Committee is wrong to support the maintenance of 18 as the age at which individuals should be able to gain a GRC. It should be 16. Young people who have fully socially transitioned should be allowed to live legally in their authentic gender. Equally, it can make a big difference for a young person to be able to enter the workplace with the correct documents, rather than having to have them changed later.
On the manufactured ‘controversy’ of single-sex spaces, it’s unfortunate that almost the entire section of the report is taken up by anti-trans voices, especially legal professionals who made extreme and unsupported arguments that they would never make on behalf of clients in court. There was no contribution from the trans community at all here. The inflation of this issue is in line with the moral panic that has been dead-centre of attacks on the trans community for some time and alas, in the UK, all this has become a grotesque battleground. For clarity, the Committee calls for worked up examples from the EHRC of situations in which it is legitimate to exclude trans people from single/separate sex spaces. We believe that if this route is to be taken then guidance must also include examples of when it is not legitimate to exclude trans people – in order to present a clear and balanced picture. Overall, however, we are fearful that this process will be part of a renewed attempt by groups hostile to trans women to redefine exceptional circumstances in ways that aren’t really exceptional at all. We believe that opponents of trans rights are pressing the EHRC to frame this guidance to be more hostile to trans women than previously, with a view to then being able to encourage its regular use by service or facility owners against trans women, in changing rooms, toilets or refuges etc.
The Committee goes on to get involved in the question of trans prisoners; unhelpfully, in our view. The prison service should focus on risk assessing each prisoner properly and making the right decisions accordingly . It doesn’t need new laws to identify trans prisoners as a separate class, for unique treatment, to do so. It just needs to do what it is supposed to do anyway (if it isn’t, then it should be taken to task over that) and the exceptions within the Equality Act are perfectly clear that it can do so. Further, a decent lawyer could have told them that they were stepping into Human Rights Act territory here , with a whole set of implications (notwithstanding Dominic Raab’s avowed intention of destroying the HRA).
One other thing, since it’s come up here. The Report talks about how some contributors who gave evidence talked of exemptions and others of exceptions to The Equality Act 2010 that can permit discrimination against trans people. The Report text conflates these terms to suggest that they mean the same thing. They do not. Opponents of trans rights often use the term exemptions – even though it is not legally correct – because it contains within it no notion of the rarity of the circumstances to which it refers. The word exception does however imply that keeping trans people out of certain spaces is a situation that should be seen as unusual and dependent upon individual circumstances. You might think this is semantics. It isn’t.
There is in the report material around decriminalising the accidental release of a trans person’s gender status once they have a GRC. The Committee calls for this sanction only to be retained in the case of deliberate, pernicious disclosure. The law at the moment is not entirely satisfactory. There are justified concerns that it can currently criminalise people without a mens rea – a very unusual situation. Although exceptional, we support the current law, however, as outing a trans person without their consent can cause irreparable harm.
We are also concerned that a loosening here is being supported by so-called GC activists because it may make the non-consensual outing of trans people (even with a GRC) more commonplace (if it can be presented as simple ‘carelessness’ and with the burden of proof now being placed on showing evidence of malice). Those working to out trans people may find a new law easy to exploit.
On sport, the Committee has effectively walked away. It acknowledges the issue but offers little more. We read some biological essentialism from Sport England and the report then founders on familiar rocks. “We believe it is absolutely essential that the integrity of women’s sport is maintained and not compromised, and that nothing should happen in this space which would undermine that”, it says (p.75) whilst then talking of the need to find ways to facilitate trans people in inclusive spaces. Like what? Either trans women are women, or they are not. In the sporting setting, cisgender women, be they unusually tall, strong or powerful, automatically qualify for acceptance into the category of women, unquestioned. Yet opponents of trans women in women’s sports suggest that a trans woman, irrespective of her height, strength, or power as an individual, should be automatically excluded because she is part of a group categorised (by them) as something other than a woman (whatever her lived experience or legal status). In fact, The Equality Act already in fact allows for something like a blanket ban of trans women in sporting settings (on the grounds of 'fair competition' - though it doesn't attempt to define what that means - or 'safety'). We’d perhaps like to see a sport-by-sport approach, using an 'exceptional circumstances' rule, by which women – trans and cis – should be assumed to be eligible unless they fall outside the boundaries of tailored guidelines (weight, strength, hormone levels, etc) created for each sport. Wherever this ends up, the hints about so-called third spaces being brought up once more (the ridiculous image of the ‘trans athletics meet’ with the three trans women athletes in the county competing against each other comes to mind) are not the answer. This thinking also represents the thin end of a large wedge that uses the same ‘logic’ to remove trans women from changing rooms and toilets etc.
The Committee’s call for the government to get moving on the legal recognition of non-binary identities is welcome. The government should do this. But after the recent Supreme Court ruling against Christie Elan-Kane on this , the augurs are alas not good for now.
Overall, it’s a generally useful piece of work by the Committee, we think. It moves things in the right direction, even if it goes off track here and there. It has certainly upset a lot of anti-trans groups and we can expect the usual suspects to be in the bigoted British press to condemn it. Its major contribution is probably to fearlessly return to the case for Self-ID , which it more or less supports (along with 70% of those who took part in the consultation which the government then ignored).
The report speaks also about the parlous state of trans healthcare and how much more must be done. We’d 100% agree.
We’re noting from elsewhere in the trans community some hostility to the addition of such a large number of trans-hostile groups as ‘stakeholders’ in the ‘debate’ and in the report itself. Some are likening this to including and then extensively quoting from Britain First in a consultation about the rights of immigrants, or including virulently homophobic hate preachers in one on gay rights. We feel the unease of reading some of these views too. Implying that some of the groups who offered evidence represent the wide opinion of British cisgender women or of British feminism is in our view a pretty bad mistake. But on balance, we support the Committee’s decision to include these views simply because to have not done so would have gifted these groups a chance to claim that they were being ‘canceled’. They certainly weren’t canceled, and it’s good to see that in most aspects extreme anti-trans/GC views didn’t persuade the Committee. The arguments were made and, in most cases, the trans community’s views were held to be the most persuasive.
The most striking thing about the whole report is to us how the political setting in which it is appearing has become unrecognisable since the Conservatives first announced GRA Reform and a consultation on it. This is a Tory-chaired Committee eviscerating a Tory government, and especially two Ministers (one of whom may well be the next Prime Minister), plus a regulatory body set up to guide and explain equality law. Whether the Committee’s conclusions will create any introspection at all at the EHRC or the GEO remains to be seen. They should. ************
 This approach was held to be lawful by the High Court in FDJ v Secretary of State for Justice  EWHC 1746 (Admin)
 A failure to consider holding a transgender woman with a GRC who is a sex offender in the female estate breaches the HRA. See R v Secretary of State for Justice  EWHC 2220 (Admin)
 Our position at TLP is that we’re not big fans of the term Self-ID as it is open to misinterpretation and has been weaponised. We prefer Gender Recognition by Statutory Declaration or Gender Recognition by Legal Declaration